Page images

(i.) Ch. D.-Parties, Foreclosure-Representation.- A man cannot be both

plaintiff and defendant in an action, therefore where a first mortgagee, plaintiff in a foreclosure action, was also made a defendant as one of the second mortgagees, ordered, that the writ should be amended by striking out the name of the plaintiff as a co-defendant. The executors and trustees of the will of a deceased mortgagor do not sufficiently represent the beneficiaries under the will for the purpose of foreclosure; but they do sufficiently represent such beneficiaries for the purpose of taking accounts against the mortgagees.-Wavell v. Mitchell,

64 L.T. 560. (ii.) Ch. D.-Patent-Interrogatories Patent Law Amendment Act, 1852

s. 41-Patents, &'c., Act, 1883, s. 29.—Where the defendant to an action for infringement of a patent alleges, in his particulars of objections, general user of the alleged invention prior to the date of the letters patent, he may be interrogated as to the names and addresses of the persons using it as alleged.-Alliance Pure White Lead Syndicate v.

MacIvor's Patents, 39 W.R. 487. (iii.) Ch. D.—Pleading-Setting Out Will.-Where a statement of facts is

drawn up to be furnished to the judge at the hearing of an originating summons on the question of the construction of a will, the will ought not to be set out in indirect narrative. Either it should be stated that the will was made and a copy of the will furnished to accompany the statement, or the material parts of the will should be set out in inverted

commas.-Smith v. Bence, 64 L.T. 282. (iv.) P. D.-Probate-Infant-Out of Jurisdiction-Guardian ad Litem.

The defendant in a probate action was an infant residing out of the jurisdiction. Notice of the writ had been served on her and on her guardian, but no appearance had been entered for ber, and it appeared that her guardian declined to enter an appearance. Held, that the official solicitor should be nominated guardian ad litem, his costs to be part of the costs of the plaintiff, who propounded the will as executor.

White v. Duvernay, L.R. (1891] P. 290. (v.) Ch. D.-Service-Amended Writ--Defendant in Default of Appearance

R.S.C., 1883, 0. xix., r. 10; 0. xxviii., 7. 10.--Service of an amended writ may be made on a defendant who has not appeared by filing it at the central office, personal service not being necessary.--Nuttall v.

Whittaker, L.R. (1891] 2 Ch. 121 ; 39 W.R. 604. (vi.) Q. B. D.-Service-Leave to Serve out of Jurisdiction-R.S.C., 1883,

0. xi., 7. 4.-Application for leave to serve a writ out of the jurisdiction on an officer on board one of Her Majesty's ships on the Mediterranean station. The ship was at the time of the application on the high seas, but would touch at one or other of the coaling ports in the Mediterranean, and would ultimately put into Malta. Held, that leave could not be given, as it was not sufficiently shown in what place or country the defendant "was or might probably be found.”—Seagrove v.

Parks, L.R. (1891] 1 Q.B. 551 ; 60 L.J. Q.B. 355. (vii.) Q. B. D.-Service-Action Against Firm-One Partner only within

JurisdictionR.S.C., 1883, 0. ix., r. 6; 0. xiv , r. 1.-A. and B., subjects of a foreign state, carried on business in England as partners. A. resided and was domiciled abroad, B. resided in England. A writ was issued against them in the name of their firm, and was served on B. Held, that the service was a good service on the firm, and that summary judgment could be entered.-Lysaght v. Clark & Co., L.R. [1891] i Q.B. 552.

(i.) C. A.-Service Out of Jurisdiction-Firm-Some Members Abroad

Amendment-R.S.C., 1883, 0. xi., r. 1 (9). The plaintiffs entered into contracts with G. & Co., an Indian firm, for the manufacture of indigo. 0. & Co. were the English correspondents of G. & Co., and there were partners common to both firms, and some of the members of each firm resided in India. G. & Co. consigned indigo to 0. & Co., and the plaintiffs sued 0.& Co., claiming the indigo. All the members of 0. & Co., both in England and India, appeared. The plaintiffs obtained an ex parte order to amend their writ by adding G. & Co. as defendants, and making consequential alterations, and also obtained leave to serve the amended writ out of the jurisdiction. In amending, the plaintiffs added a claim in respect of fresh causes of action. Held, on motion to discharge the order to amend, that the original writ was wrongly issued against O. & Co., some of the members being out of the jurisdiction, and that the order to amend it was also bad. Order to set aside the amended writ, with liberty to the plaintiffs to amend the original writ by substituting as defendants the members of both firms who were in England, and by adding a claim in respect of the fresh canse of action; the members of the two firms out of the jurisdiction being at liberty to set aside their appearances ; without prejudice to any application by the plaintiff to add them as parties, and to serve them with the amended writ.

Indigo Co. y. Ogilvy, L.R. [1891] 2 Ch. 31. (ii.) C. A.-Writ-Service-Foreign FirmR.S.C., 1883, 0. ix., r. 6;

0. vi., r. 1 (e), r. 7; 0. xvi., t. 14.-In an action against a firm all the members of which are foreign subjects domiciled and resident abroad, where the plaintiff has obtained leave to issue and serve out of the jurisdiction notice of the writ, and has served it abroad on one of the partners, and no appearance has been entered, there is no jurisdiction to allow the plaintiff to sign judgment, in default of appearance, against the firm.-Dobson v. Festi, Rasini & Co., L.R. [1891] 2 Q.B.92;

64 L.T. 551 ; 39 W.R. 481. (iii.) C. A.-Writ-Service-Foreign FirmR.S.C., 1883, 0. ix., 4. 6

- A writ was issued against the defendants in the name of their firm. The firm was a foreign firm, carrying on business abroad, and all the partners were foreign sabjects. Two of them were resident and domiciled abroad, and one was resident in England at the date of the writ. He used a room in London for the purpose of the business of the firm. The writ was served on him in England. Held, that the writ and service must be set aside.—Heinemann & Co. v. Hale & Co.,

L.R. (1891] 2 Q.B. 83 ; 64 L.T. 548; 39 W.R. 485. (iv.) C, A.-Writ-Service out of Jurisdiction-R.S.C. 1883, 0. xi., r. (f), r. 2.

- The question in litigation was whether X., deceased, was, at his death, domiciled in Scotland, his native country, or in Bolivia. His sisters, claiming that his domicile was Scotch, had obtained confirmation of their title, and had been appointed executrices dative. The Scotch confirmation had been sealed by the Probate Court. X.'s personal estate consisted principally of a sum of money in the bands of G. and S., residents in England. The plaintiff claimed to be X.'s widow, and that he was domiciled in Bolivia, and intended to take proceedings to obtain revocation of the Scotch confirmation. The plaintiff commenced an action against the executrices dative, and G. and S., claiming a declaration that X. died domiciled in Bolivia, and an injunction to restrain G. and s. from parting with the money in their hands, except to the plaintiff. Held, that the writ ought not to be served out of the jurisdiction on the executrices dative, the Scotch Courts having seisin in the matter and the plaintiff intending to take proceedings



there. A remedy which depends on the will and pleasare of another person is not a concurrent remedy within Rule 2 of Order xi.

De Penny v. Christie, L.R. (1891] 2 Ch. 63 ; 64 L.T. 521; 39 W.R. 571. (i.) P.D.-Salvage-Service out of Jurisdiction-R.S.C., 1883, 0. xi., r. 1 (9).

- When in an action for alleged salvage services rendered to ship, freight, and cargo, the writ had been served on the owners of the salved ship resident within the jurisdiction, leave may be given to serve notice of the writ on the cargo owners, ont of the jurisdiction.

The Elton, L.R. (1891] P. 265. (ii.) P. C.-Ship-Collision-Issue

Contributory Fault.-Where neither party in a collision action raised the question in the Court below as to there being contributory fault on the part of the vessel belonging to the other party, held, that such question could not be raised for the first time in the final Court of Appeal by the party found to blame in the Court below.- Owners of the Pleiades v. Page,

L.R. (1891] A.C. 259. (iii.) P. D.-Ship-Solicitors UndertakingR.S.C., 1883, 0. ix., nr. 1, 10.

In a collision action in rem the defendants' solicitors accepted service of the writ and indorsed it, “ We accept service on behalf of the defendants, the owners of the A., and undertake to put in bail in a som not exceeding the value of the A.” The defendants withdrew their authority, and the solicitors did not appear. Held, that they had not broken their andertaking, and were not liable to attachment.--The

Anna & Bertha, 64 L.T. 332. (iv.) P. D.-Ship-Evidence before Examiner— Correction of Transcript of

Shorthand Notes.-If, after filing the transcript of the shorthand notes of evidence taken before an examiner, a mistake is found to have been made by the shorthand writer in transcribing his notes, application should be made by the party aggrieved for an order directing the transcript to be taken off the file and returned to the examiner for amendment, and the costs thereby incurred will be costs in the cause.

The Knutsford, L.R. (1891] P. 219; 64 L.T. 352; 39 W.R. 559. (v.) Ch. D.-Short Cause-Length of Notice-Chancery Judge's Regulations,

1876.— The plaintiff gave notice of motion for judgment for the 14th of
March. The case was marked "short," and the 14th of March was the
regular short cause day. The defendant did not appear, and judgment
was given for the plaintiff. Held, on motion to set aside the judgment,
that the proceedings were right, but that under the circumstances the
judgment should be set aside, and leave given to defend, on payment of
the costs of the motion and costs subsequent to the statement of claim.
-Green v.

Moore, 39 W.R. 421.
See Local Government, p. 125, ii.

Registration :(vi.) C. C. R.-Preparation of Voters' ListsOverseerBreach of Duty

IndictmentReform Act, 1832— Registration Act, 1843, ss. 13-19, 51, 97. - The power of the revising barrister to fine an overseer for wilful breach of his duty in preparing the lists of voters, and the power of the aggrieved party to bring a penal action in respect of such breach of duty, exclude the remedy by indictment, and an overseer therefore cannot be indicted for such breach of duty.-- Reg. v. Hall, L.R. (1891] 1 Q.B. 747 ; 64 L.T. 394.

Restraint of Trade :(i.) C. A.–Agreement-ReasonablenessValidity.-An agreement for the

employment of the defendant as a traveller provided that after the termination of his employment he should not, either on his own account or for any employer, "call apon, or directly or indirectly solicit orders from, or in any way deal or transact business with, any one who had, while the agreement was in force, been a customer of the plaintiffs." Held, that the true construction of the agreement was that the defendant should not transact with his employers' customers business of a kind similar to that carried on by his employers, that the restraint was reasonable, and that the agreement could be enforced by injunction.

Mills v. Dunham, L.R. (1891] 2 Ch. 576. (ii.) Ch. D.-Reasonable Limits.—By written agreement, D. & Co., of

London, foreign carriers, agreed to employ L. as their clerk. There was a covenant that L. should not, within twelve months after the determination of the agreement, carry on, or be engaged in, or interested, directly or indirectly, in the cities of London, Birmingham, Liverpool, and New York, or within fifty miles of any of those cities, “either as principal, clerk, agent, or otherwise,” in any business similar to that “now or hereafter” carried on by D. & Co. D. & Co. had no business with Birmingbam, but had a large business with the other places mentioned. Held, that the limit of time was reasonable, and also that of space with the exception of Birmingham; that the words "principal, clerk, agent, or otherwise" in the agreement were not too wide ; that the words “now or hereafter" were not reasonable; and that the covenant could be held partly good and partly bad. - Davies, Turner and Co. v. Lowen, 64 L.T. 655.

Revenue:(iii.) Q. B. D.—Exemptions-Landlord's Property Tax-Inhabited House

Duty-Hospital.-A lunatic asylum was founded, and substantially maintained, by charitable contributions. In the year previous to that of assessment the payments made by patients, and the sale of produce on a farm belonging to the institution, without taking into account the income of the endowment fund and the annual subscriptions, exceeded the year's expenditure. Held, that it was not on that account wholly self-sapporting, but was a hospital maintained in part by charity, and was exempt from landlord's property tax and inhabited house duty.-Cawse v. Committee of the Nottingham Lunatic Hospital, L.R. (1891]

1 Q.B. 585; 39 W.R. 461. (iv.) Q. B. D.-Income Tax-Deduction of Losses from Profits.-A brewery

company carried on, in connection with their brewery business, a business of banking and money.lending confined to the customers of the firm. Held, that such banking and money-lending business was an adjunct to the brewery business, that only one business was carried on, and that losses in the banking branch might be deducted from profits in the brewery branch in making income-tax returns.—Reid's Brewery Co. v. Male, L.R. (1891] 2 Q.B. 1; 60 L.J. Q.B. 340; 64 L.T. 294;

39 W.R. 459. (v.) Q. B, D.-Income Tax-Office of Profit-Necessary Officer of Collegiate

Body-Bursar.-The statutes of a college declared that the college should consist of a president, fellows, and scholars, and provided for the appointment of a barsar; and also provided that the college seal should not be affixed to any document except in the presence of the bursar. G. was appointed bursar at a salary fixed by the president and fellows, which was paid to him out of the corporate revenues of the

college without any deduction in respect of income-tax, Held, that G., not being a member of the collegiate body, although a necessary officer of the college, was liable to income tax as holding an office or employ. ment of profit under Schedule E.-- Langston v. Glasson, L.R. (1891]

1 Q.B. 567 ; 60 L.J. Q.B. 356; 39 W.R. 476. (i.) C.A.— Income Tax-English Company-Business Abroad— Profits Earned

Abroad and not Remitted.Decision of Q. B. D. (see Vol. 16, p. 96, i.)

affirmed.—London Bank of Mexico v. Apthorpe, 39 W.R. 564. (ii.) Q. B. D.-Land Tax-Railway-Tunnel.-A railway company was

authorised to take lands under certain roads without being required to take the surface. The Act referred to the right as an easement." Held, by Cave, J., that the company was, and by Williams, J., that it was not, liable to be assessed to land-tax in respect of a tunnel passing

under the roads.—Metropolitan Railway Fowler, 64 L.T. 662. (iii.) C. A.–Legacy Duty-Annual Payment to Executor and Beneficiary for

Managing Business.- Decision of Ch. D. (see Vol. 16, p. 96, iv.) affirmed.
-Thorley v. Massam, 64 L.T. 515; 39 W.R. 565.

Reward :(iv.) Q. B. D.-Offer of for Information, Publication-Who Entitled.—The

defendant offered, by printed handbills, a reward to the person who should give information to P., a superintendent of police, which should lead to the conviction of the perpetrator of a certain crime. Before the instructions to print the bandbills were given, the plaintiff, a police officer, had communicated the desired information to C., another police officer, with instructions to forward it to L. C. communicated the information to L., his immediate superior, in accordance with the regulations of the force. L. forwarded it to P., who received it after the distribution of the handbills. Held, that the plaintiff was entitled to the reward.— Gibbons v. Proctor, 64 L.T. 594.

Settled Land :(v.) Ch. D.-Costs of Attempted Sale-Capital Money-Charge on Settled

Land-Settled Land Act, 1882, ss. 3, 4, 21 (7), 46., sub-s. 6, 47, 55, sub.s. 3.—The costs, charges, and expenses incurred by a tenant for life of settled land in an unsuccessful attempt to sell the property may be paid out of capital moneys; or, if there are no capital moneys out of which they can be paid, the Coart has jurisdiction to order them to be raised by means of a charge on the property.-In re Smith's

Settled Estates, 39 W.R. 590. (vi.) Ch. D.-Trust for Sale-Tenant for Life-Settled Land Acts, 1882,

8. 63; 1884, ss. 6 87.-Land was devised to A. and B. on trust for sale, with trusts of the proceeds for X. and Y. as tenants for life, and subject thereto for A. and B. The trustees refused to sell the land. Held, that leave ought to be given to X. and Y, to do so.-In re Harding's

Settled Estates, 60 L.J. Ch. 277. Sheriff :(vii.) Q. B. D.-FeesPreparing for Sale-WithdrawalPercentage.—A

sheriff's officer seized a ship under a fi. fa., valued it and prepared it for sale in one lot, but made no inventory or catalogue in connection with it. The execution having been withdrawn, held, that paragraph 7 of the Table of Fees annexed to the order of the 3rd of August, 1888, did not apply to such a subject matter as a ship, and that the sheriff was not entitled to two and a half per cent. on the value.-Cohen v. De Las Rivas, 64 L.T. 661; 39 W.R. 539.

« PreviousContinue »